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Errors Of Fact Notes

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Administrative Law: Errors of Law, Errors of Fact
TABLE OF CONTENTS
Craig, Administrative Law, Chs. 16, 17 & 24....................................................................2
ERROR OF LAW........................................................................................................................ 2
Theories of jurisdiction.......................................................................................................... 2
Case law history..................................................................................................................... 3
Current Caselaw.................................................................................................................... 4
Policy Considerations............................................................................................................. 5
Error of fact.............................................................................................................................. 6
Remedies: invalidity.................................................................................................................. 8
Errors of Law ('Jurisdiction').............................................................................................8
*Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL.....................................8
Pearlman v Keepers and Governors of Harrow School [1979] QB 56.........................................9
O'Reilly v. Mackman [1983] 2 AC 237 (HL), at 275c-276f..........................................................9
*R v Lord Chancellor ex parte Page [1993] AC 682..................................................................10
*R v Monopolies & Mergers Commission, ex p. South Yorks Transport [1993] 1 All ER 289, HL
................................................................................................................................................... 12
*Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (NB does majority accept [50] & [54]?) (NOFL)...................................................................................................... 12
**R (Cart) v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 (NB Supreme Court)......12
*Jones v First Tier Tribunal [2013] UKSC 19, [2013] 2 AC 48 (NB Supreme Court)................13
*T.R.S. Allan, "Doctrine and Theory: An Elusive Quest for the Limits of Jurisdiction" [2003]
Public Law 429 (NOFL)............................................................................................................. 14
The Consequence of an Error of Law - Void, Null, Voidable, Invalid?............................14
C. Forsyth, 2007 Cambridge LJ................................................................................................. 14
*D Feldman, 'Error of Law and Flawed Administrative Acts' (2014) 73 Cambridge LJ 275
(NOFL)....................................................................................................................................... 15
*Compare R v Govr of Brockhill Prison, ex p. Evans (No 2) [2001] 2 AC 19 & (NOFL)............15
*R (WL (Congo)) [2012] 1 AC 245, SC (NOFL)..........................................................................16
Review of Findings of Fact (NB Craig, ch 15).................................................................16
R. v. Hillingdon L.B.C. ex parte Puhlhofer [1986] 1 AC 484 (HL), at p.517.............................16
R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74, HL................16
R. v. CICB, ex parte A [1999] 2 AC 330, Lord Slynn's judgment...............................................17
*Alconbury [2001] 2 All ER 929, HL.......................................................................................... 17
**E v Secretary of State for the Home Department [2004] QB 1044, especially paragraphs [44]
- [67].......................................................................................................................................... 18
Connolly v Secretary of State for Communities and Local Govt [2009] EWCA Civ 1059, paras 1-40............................................................................................................................................ 18
R (CJ) v Cardiff CC [2011] EWCA Civ 1590............................................................................... 18
*Bubb v L B of Wandsworth [2011] EWCA Civ 1285.................................................................19
The Fact / Law Distinction (cases above ... and...)..........................................................19
*Edwards v. Bairstow [1956] AC 14 HL.................................................................................... 19
*Moyna v. Secretary of State for Work & Pensions [2003] 4 All ER 162, HL...........................20
*T. Endicott, "Questions of Law" (1998) 114 LQR 292.............................................................20
ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

Page 1 R. Williams, "When is an Error not an Error? Reform of Jurisdictional Review ..." (2007) Public
Law 793..................................................................................................................................... 21

ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

Page 2 CRAIG, ADMINISTRATIVE LAW, CHS. 16, 17 & 24
ERROR OF LAW
THEORIES OF JURISDICTION-

Traditional theories draw distinction between jurisdictional errors (those relating to the kind/type/scope of case into which a public body could enquire) and non-jurisdictional ones (those relating to truth/detail of the findings it made) - only jurisdictional errors are subject to review because reviewing errors made internally within the body's assigned are would blur the distinction between review of legality and appeal

However courts haven't always drawn distinction rationally; sometimes it's influenced by whether the court wanted to intervene. Nevertheless most judges thought a divide could be drawn on analytical terms
Most recent theories don't draw the distinction - intervention is based on error of law
(distinction between law and fact) and cause controversy as courts may not be better at resolving issues of law than the public bodies they're reviewing

Collateral Fact Doctrine (Lord Diplock, Anisminic - authoritative until 1960s)-

Thesis: There are preliminary questions that public bodies must answer before they can proceed on the merits, and these relate to whether the body was properly constituted,
and whether the case was of a kind referred to in the statute (questions can involve fact,
law or discretion). Public body makes an initial determination, but if the court finds on review that the situation in the statute didn't exist then the public body's finding is null.
Difficulty: normally, statutes would say if X1, X2 and X3, then public body shall/may do Y.
But if the X factors were deemed always to be jurisdictional, then the line between appeal and review would disappear and public body would only have the power to do whatever accorded with the opinion of the court

Diplock's resolution: if misconstruction of the statute relates to kind of case, then it is jurisdictional, but if it relates to situation then it is internal (but this line is impossible to draw - there is no predictability as to how a case will be categorized before the court categorizes it, and no ex post facto justification for why cases are so categorized)

Limited Review (Gordon)-

Thesis: if a public body is given jurisdiction over a certain topic then the question is whether the facts relating to the topic exist in the opinion of the public body (eg. if the topic is assault, then as long as the public body asked the right question (was there assault in the opinion of the public body?) then it will bind, even if it made the wrong answer).
Difficulty: distinction between scope and truth is misconceived - it is fallacious to say that asking the wrong questions is always a question of jurisdiction; the subject matter of inquiry might involve decisions on a number of issues, and yet since each isn't a subject matter by itself any error is only within jurisdiction. The fallacy is most evident when considering f(a,b,c,d...)=furnished tenancy - Gordon would only inquire into whether the

ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

Page 3 right term, "furnished tenancy", has been used, and doesn't allow the court to peer into the meanings in the bracket (terms certain, intent, amount of fixture and fittings...) as these are termed non-jurisdictional. And yet the term is only a short hand for what is in the bracket - such a distinction makes little sense. As such, it would allow terms to become 'empty vessels' into which anything can be poured.
Extensive Review - Academic (Gould)-

Thesis: The preliminary question of whether a public body was empowered to answer the relevant issue is decided on the opinion of the court, because it exists independently/as a precursor to the exercise of jurisdiction. The question is based on facts whose meaning cannot be altered by the public body, but relative to the opinion of the courts.
Difficulty: why should all issues of law be 'given', and determined by the courts?
o Parliamentary intent - problem is that the argument depends on an irrebuttable presumption that Parliament intended the courts to decide on questions of law.
This has been true in practice in the last 40 years but not in the 300 years before this.
o Impossibility (Gould: it wouldn't be possible to talk of error of law unless there's a
'given' meaning, to be determined by the courts) - this is a fallacy because all terms can have a number of meanings and "error of law" simply means that the court's meaning is better than the public body's. However Parliamnet may well prefer precise meanings adopted by specialist bodies rather than the general judicial meaning

Uniformity (only adopting court's interpretation, rather than inferior bodies'
diverse interpretations, can achieve uniformity) - but this argument doesn't apply to bodies with internal hierarchy (top can define and bottom uses the definition).

Extensive Review: Judicial (Page - Browne-Wilkinson)-

Thesis: Parliament only conferred decision-making powers on the basis that it was to be exercised on the correct legal basis (so that misdirection in law while exercising the power rendered it ultra vires). The presumption that any error of law is reviewable is rebuttable, and the strength of the presumption varies according to the institution being reviewed
Difficulties:

1. Meaning of 'ultra vires' is problematic: Necessary to distinguish four aspects of reasoning in Page:
a. Disapproval of collateral fact doctrine (welcomed)
b. Replacement of the doctrine with test that all errors of law are open to scrutiny
(similar to Gould's theory - objections there apply here; if all X factors are open to review, then this means that court's definition of terms like "employee" are preferable to public body's)
c. Though the decision was based on ultra vires, it gives the term a different meaning: Anisminic said that jurisdictional errors were ultra vires, but Page says that any error of law may be ultra vires. Sir John Laws says that the ultra vires principle isn't needed anymore because the courts are essentially reviewing all errors of law, but it is still useful in providing a legitimate device for exercise of courts' power.
d. There is a latent duality in the meaning of ultra vires given by BrowneWilkinson: 1) contrary to legislative intent (701) and 2) contrary to the general

ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

Page 4 law of the land, including common law (no longer limited to legislative intent -
702)

2. Test depends on defining 'error of law' (versus error of fact) yet judicial precedent provides little guidance as to which is which (because judicial attitude was based on collateral fact). Shift towards attitude that all errors of law are jurisdictional makes distinction more important. Three themes in literature:
a. There can be disagreement, but issues regarding meaning of statutory terms should always be a question of law b. But the courts don't always adopt this approach - sometimes they decide based on whether they wish to intervene c. Courts have sometimes thought that when an issue is deemed one of law then substitution of judgment is inevitable, but when a spectrum of reasonable interpretations are available then it must be a question of fact. This doesn't follow: a legal issue doesn't stop being such just because it's open to multiple interpretations
Conclusion

1. Scope vs truth/detail is unsatisfactory as test for what is jurisdictional

2. Scope of jurisdictional review is not self-defining (can't be decided on linguistic/textual analysis of statute alone) - critical questions relate to opinion
CASE LAW HISTORY
Limited intervention (items in the bracket are not subject to review)Bolton: Denman CJ - if the charge that was made is within jurisdiction, then any further error only lay within the jurisdiction; if the charge wasn't for the offence that the statute gave the body jurisdiction over, then the court could review (thus review doesn't depend on correctness of charge but on whether the charge actually made was within jurisdiction)

Collateral Fact (certain facts must be proven by the body before it could go right/wrong)Bunbary: any ruling on collateral matters is open to inquiry in superior courts.

ReconciliationR v Commissioners for Special Purposes of Income Tax: there were two types of tribunal,
one what had jurisdiction only if a certain state of facts existed (thus inferior tribunal couldn't determine conclusively on the existence of such facts), and one that had durisdiction to determine whether the preliminary state of facts existed (the inferior tribunal decides on all facts)
o This was a reconciliation on form not substance (can't see from statute which case falls on which side); it is an ex post facto reiteration of the divergence in the caselaw, not an ex ante tool to determin which group a case should fall into

CURRENT CASELAW
Anisminic
ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

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Lord Reid: courts can intervene if the alleged error resulted from asking the wrong question or taking account of irrelevant considerations. This widened scope because a court could always say when it wanted to review that the error stemmed from asking the wrong question
Lord Pearce and Wilberforce reached same conclusion similarly: tribunals had limited authority, the limits of which were up to the court to define in view of the relevant statute. Lack of jurisdiction can arise by absence of condition precedent to tribunal's jurisdiction, irrelevancy, and asking the wrong question
Points:
o Asking the wrong question and irrelevancy tell us that an error has been made, not that it is jurisdictional; the judgment presupposes that any condition to the exercise of jursidiciton is jurisdictional. It essentially replaces the tribunal's view of the powers conferred by statute with the court's view; the division between jurisdictional and non-jurisdictional vanishes

Language of 'asking the wrong question' is really just a round-about way of saying that a different construction of an X condition should be adopted

From Anisminic to Racal-After Anisminic court could decide to intervene by saying the error resulted from asking the wrong question, or decide not to intervene by saying there was no error, or that the error was internal - contrast:
Moore: sought review of tribunal's interpretation of 'resources' for the purpose of a statute: Denning said that the interp was correct, and that further statutes shouldn't become a hunting ground for lawyers to ask the court to review every minutia
Pearlman: Denning said that the distinction depends on whether courts want to review,
and that any error of law should be jurisdictional if the case depends upon it

The Uncertainty of Racal-

Diplock drew tripartite test:
o Admin tribunals were subject to the full rigours of Anisminic: parliamentary intent is presumed subject to clear intention otherwise; any error of law will be deemed to result from asking the wrong question (jursidicitonal/non-jurisdictional errors abolished for practical purposes)
o Lower courts were subject to a different test, depending on the construction of the statute (whether P intended questions of law to be left to inferior courts - no presumption that statute didn't so intend)
o High Court not subject to judicial review (appeal was the only corrective for mistake)
No other support for tripartite division

Impact of Page (now leading authority)-

Ground of appeal: A was university lecturer who was made redundant; claimed that he couldn't be dismissed on that ground, and visitor dismissed the claim. Sought review of visitor's decision.
Impact:

ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

Page 6 o

o

o o

Browne-Wilkinson said that the distinction between error of law on the face of the record and other errors of law was abolished, and that all admin tribunals' errors of law were subject to review
Basis of review is ultra vires - contrary to the law of the land. Thus lower courts are subject to review if their decisions are erroneous with regards to the law of the land.
Only relevant errors can quash decision (those that contributed to the making of the decision)
Unclear whether the distinction between tribunals and lower courts exists

Impact of South Yorkshire TransportTerms might be open to a spectrum of interpretations, and the court can decide where on the spectrum to place the meaning (this is binding)
But the criterion that is chosen might itself be so imprecise that different decisionmakers may rationally reach different conclusions when applying it to specific cases, in which case the court will only substitute its meaning if the meaning the authority gave is
"so aberrant that it cannot be classed as rational"

Impact of CartFirst case that dealt with the more limited review under Tribunals, Courts and
Enforcement Act 2007
Rejected argument that the Upper Tribunal was immune from review: no judge is infallible, so judgments should always be subject to review by superior courts; if the
Upper Tribunal were immune, then it can make errors and these cannot be corrected

Summary

1. Courts will review any error of law and won't use jurisdictional/non-jurisdicitonal distinction

2. Error must be relevant to decision

3. If, having defined the statutory term, it is still imprecise, the court will only substitute its decision for the agency's if the latter is aberrant

4. Administrative body raises presumption that Parliament intended questions of law to be subject to review; lower courts do not raise this presumption

5. Upper Tribunal within the confines of the 2007 Act only engages judicial review where C
shows that the claim raises an important point of principle or practice/other compelling reason

6. County court calls for more limited review: Cs must use appeal rights rather than judicial review except on grounds of absence of jurisdiction

7. Grant of remedies is discretionary; it may not result merely because an error of law has been made
Error of law within jurisdiction-

Errors of law within jurisdiction are subject to review if they 'appear on the face of the record' (in documents initiating the proceedings/pleadings/adjudication, reasons for decision)
But since Page discarded distinction between jurisdictional/non-jurisdictional error, this new category is redundant

ADMINISTRATIVE LAW: ERRORS OF LAW AND FACT

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